Authored By: SYDNEY EFFAH ACHEAMPONG
GHANA SCHOOL OF LAW
Abstract
The authorites who mete punishment out in many justice systems exercised by states are making a gradual shift from the retributive nature to a more accommodating system, one of reformation, rehabilitation and subsequent reintegration of the prisoners back into society. An essential part of this new ideology picked up is the use of the parole system. Ghana has, through recent judicial decisions and interpretations of the Supreme Court, which is the highest court of the land, adopted this shift in its criminal justice system. She is however yet to adopt a parole system and this has left the criminal justice system open to problems that the existence of a parole system would prevent from occurring.
This paper seeks to highlight the broad concept of reformation or restoration, the shift towards it by states including Ghana from the retributive system and what falls under it, that is, rehabilitation and reintegration, an elaboration of the parole system and how it furthers this concept, the absence of the parole system in Ghana’s criminal system, the perks that the Ghanaian criminal justice system receives upon implementing the parole system with evidence from countries that have implemented said system and ends with a clarion call for the adoption of this system.
Introdution; The shift from retributive justice to the restorative justice
Criminal justice, as a system, is imperative in every state. It checks the behaviours of its populace and ensures law and order in society. It is tasked with maintaining security, preventing crime and upholding justice for not only victims, but the community in general[1]. The early criminal justice systems of nuermous states was charzcterised by the retributive form of punishment, which seeks to make the criminal suffer for the wrong that they have done in the exact proportion. It considers the crime committed by the criminal as an offence against the state. This form aimed at ensuring that the crime had been turned back to the criminal in the sense that he “gets what he deserves”[2]. To the retributivist, the end is achieved upon duly metting out the appropriate punishment to the criminal. Its base is the ‘eye for an eye’ concept, which looks to just repay the criminal for the crime committed. It has been themed backward-looking. This form of justice or punishment has however been crticised for this same theme it posesses. It has been described as the “attitude of hostility which brings with it repression and exclusion.”[3] Under this, the criminal is an enemy who has to be put down for the good of society. This, coupled with the absence of the victim in the punishment procedure stemming from the idea that the , led the change of punishment system to restorative system, which is seen as an all-party inclusive measure. The criminal justice system of Ghana is currently undergoing this shift
What is restorative justice?
Before delving deep into Ghana’s gradual transition or recommendation of such to the restorative system and the influence behind , this system of justice is to be explained. Restorative system of justice, or restorative justice looks at the healing of society, the victim and the criminal. The victim is, in principle, the central actor in this form of justice[4]. It pictures crime as a loss to individuals, notably the victim, rather than a mere violation of a crime[5]. It is a theory of justice that emphasizes repairing the harm caused or revealed by criminal nature[6]. This means that, rather than merely punishing the criminal for the wrong committed, the justice system undergoes a procedure that begins with the conviction and subsequent punishment of the criminal, continues with his healing, which consists of rehabilitation and reformation and ends with the reintegration of the criminal back in society. In all, restorative jsutice seeks to restore decision-making power to those directly affected by the harmful event; the victims, their supporters and sympathisers, and the community at large[7], and looks at the deepening of the relationships within the community.
Restorative justice houses two key features; rehabilitation and reintegration. Rehabilitation refers to the altering of attitudes, elimination of certain negaitve values and personality features and instilling skills such that the criminal would not reoffend. It alters the intrinsic dispositions of the criminal. The criminals are enrolled on rehabilitative programmes, which come in diverse forms and compose of different strategies. Rehabilitation may come in the form of therapy[8], which acts like medication, with the aim of curing the ill-thoughts and patterns forming the base of the crime committed. This includes the alcohol and substance abuse treatment, as well as the formation of anger management centres. There is also the rehabilitation in the form of moral improvement, where the offenders are seen as moral agents who possess the responsibility to other moral agents, being the community, to rehabilitate themselve. Hampton is of the view that this form of rehabilitation is done by explaining to the ffender the reasons for refraining from committing the crime again[9]. This variant of rehabilitation ensures that the offender pays off the moral debt owed to the victim. Rehabilitation mainly reflects the restoration process, which comes in two forms, repairing the social damage done to the victim and the offender deciding to change attitudes by undergoing some training that will equip him with skills that will benefit not only himself, but the community at large. The latter ought to be a conscious effort by the offender, devoid of any coercion, as that could be counter-productive[10].
Reintegration refers to the reintroduction of the offender into the community so he lives in a law-abiding manner[11]. It is characterized by active participation in community by the ex-offenders. The determinant of whether reintegration is successful is if the ex-offender is out of the prison system for at least two years and maintaining supportive networks[12]. Reintegration prepares the offender for the real world as he leaves the walls of the prison. Reintegration takes many forms in ensuring that upon release from prison, there is a low possibility of recidivism. Such forms include the engagement in religious activities, which allow the inmntes find inner peace and increases motivation to change[13], economic empowerment programmes which would aid the inmates become financially independent and education (both formal and non-formal) as well as vocational training to equip the inmates with skills they can use to earn a living. The use of a parole system, which is the main topic and will be elaborated under the subsequent subheadings, is also a key element of reintegration. It serves as a progressive measure of correctional services[14]. It gives the opportunity to offenders to re-establish social ties in society and get life going once again, as an incentive for good behaviour during period of incarceration. It has grown to become a very important component of restorative justice.
Ghana’s shift to restorative justice
The wave of the shift from retributive justice to restorative justice has blown past Ghana as this transition has been widely undergone and the continuation of such is still encouraged by actors in Ghana’s criminal justice system. The Ghanaian criminal justice has had a change in end goal from merely punishing the criminal to serve as a deterrent to other members of society to implementing a procedure which looks at the reformation of the criminal and ends with his reintegration into the society.
This transition is evident, with Ghana explicitly stating that her rules regarding the incarceration of offenders are guided by the United Nations Standard Minimum Rules for the Treatment of Prisoners (The Mandela Rules). The Mandela Rules states that the period of imprisonment is to be used to ensure that the reintegration of the inmates into society upon release, they can lead self-supporting lives[15]. This rule serving as a guide to prison rules made by Ghana establishes the restorative justice stance held in Ghana. The Mandela Rules also state that there should be the giving of vocational training, employment counselling, formal and non-formal education and strengthening of moral character to the inmates during their incarceration[16]. The Ouagadougou Declaration of 2002 was drafted pursuant to the conference held under the auspices of the African Commission of Human and People’s Rights, which Ghana was a panel member of , encourages reintegration of offenders by empowering them to live crime-free lives in future[17]. With these guides, measures have been established which achieve the goal of reforming and reintegrating the offender back into society. THe Ghana Prisons Service has employed skilled artisans as trade instructors as well as provided workshops and materials[18]. It has also collaborated with the Ghana Education Service to provide formal education to the inmates, allowing them to sit for the Basic Education Certificate Examination and West African Secondary School Certificate Examination[19]. Distance Education has also been made available to the inmates throgh collaboration with tertiary institutions[20]. These setups serve as proof that on ground, restorative justice is being practised.
In the Ghanaian criminal jurisprudence, there has also been the advocacy for the transition to restorative justice. The transition could be seen to have started with the dissenting opinion of Dotse JSC. in the case of Howe The Republic[21], where he was of the view that punishments metted out to offenders ought to be repackaged to include reforms and rehabilitation. This view was expressed in another dissenting opinion of his in the case of Robertson v The Republic[22]. Furthermore, in the case of Kofi Abban v The Republic[23], the court stated that as first time offenders, there was the need for the punishment to reform them. Thus, the sentence of 30 years was deemed harsh. The highlight of the transition towards restorative justice for the sake of this paper is the view made in the case of Amankwah v The Republic[24], where the court made the suggestion that the criminal justice system should consider restorative justice and possibly introduce a parole system. This suggestion has been taken to heart partially, with the parole system yet to be implemented.
The absence of a parole system in Ghana
Inasmuch as Ghana has duly shifted to the restorative form of justice, there lies a gap between the status quo regarding the shift and the total fulfillment of adopting the restorative justice system; a gap which can be filled by the establishment of a structured parole system. Neither the Ghana Prisons Service Act, 1972[25] nor the Criminal And Other Offences (Procedure) Act, 1960[26] has made any provision to the effect of granting parole. The closest tool in Ghana’s criminal justice system is the prerogative of mercy. This is howver different from parole in the sense that the former is a power possessed by the President of the state, at his discretion whereas parole is a conditional release of the prisoner while still under strict supervision.
What is a parole system?
Parole refers to the permission given to a prisoner to leave prison before the end of a sentence usually as a reward for behaving well[27]. Parole allows the offender to serve the remainder of his time in the community under supervision. It is often mistaken for clemency. However, the latter is granted without any supervision of the offender. Parole hearings, unlike the usual court hearings, are not open to the public. This system was first introduced by Zebulon in 1876[28]. The concept of parole stems from the idea of indeterminate punishment, where the offender had the opportunity to be released before the expected time. The aim of implementing the parole system is to rehabilitate prisoners in the community and create cooperation between prisons and the community[29]
The benefits that Ghana’s criminal justice system would enjoy upon implementing a parole system
Parole has gradually become a key attriubte of modern correctional policies around the world. It has a proven track record of fulfilling the diverse goals set by correctional facilities, especially regarding resources within the prison system. The advantges of parole extend beyond the inmate and engulfs the entirety of the criminal justice system.
One way that the establishment of a parole system will be of great benefit to the Ghanaian criminal justice system is by solving the issue of overcrowding. This overcrowding is as a result of delayed trials as well as strict, harsh sentences which inmates incarcerated for long periods while adding up more prisoners. The prison facilities in Ghana is supposed to, ordinarily, cater for 10,256 inmates. However, it currently accomodates 15,228 inmates, including remand prisoners as well as pre-trial detainees[30]. A parole system tackles this problem by releasing inmates before the end of their sentences on condition that they maintain good behaviuoral standards, thereby freeing up space for new inmates and easing the weight on the resources. In the United States, for instance, the use of the parole system aided in reducing the numbers of incarcerated persons, as the less dangerous criminals were placed on parole, expanding the space to cater for the dangerous criminals[31]. Linking this to the situation in Ghana, the use of a structured parole system would ensure that there is more space to cater for newer inmates.
A parole system would also reduce the risk of recidivism among offenders in Ghana. Parole serves as a gradual re-entry into the society. Strict supervision is one of its main features. This means that at the early stages of the offender’s release, he is closely monitored by a parole officer. This means that the offender is not immediately left to fend for themselves but rather, coupled with the skills that he learnt during incarceration, guided back into society, allowing to commence a crime-free life. US research shows that offenders released on parole are 36% less likely to be reincarcerated than inmates who serve their full sentence[32]. This is due to the supervision that comes with parole. It is on record that in Ghana, about 24% of released inmates recidivate repeatedly[33] This shows that a parole system here would give the needed monitoring and supervision needed. This alson goes a long to ensure public safety due to the constant monitoring of the now-released inmate.
A parole system also serves as an incentive for good beaviour. A parole system allows the inmates to value change rather than endure the procedure leading to change in a passive manner. The inmates are more likely to embrace the rehabilitation that comes with being incarcerated when they are the hope of returning to their families upon fulfillment of their behavioural conditions. Parole gives them hope of returning to their communities as better people. This would serve as a massive contribution and a great end to the rehabilitation system established in Ghanaian prisons.
A courtesy call for the implementation of a parole system in Ghana
In light of the arguments stated, it is submitted that the time has come for Ghana to institutionalise a statutory parole framework which would affirm Ghana’s commitment to the rehabilitation and reintegration of inmates. This implementation would go a long way to assert Ghana’s criminal justice stance as one that corrects rather than merely confines.
REFERENCE(S):
- Alex Antwi, ‘Social Reintegration of Offenders and Recidivism in Ghana’ (2022).
- P. Carney, Probation and Parole: Legal and Social Dimensions (McGraw Hill Book Company, New York).
- Amanda Dissel, ‘Rehabilitation and Reintegration in African Prisons’ (HSRC Press, South Africa) http://www.hsrcpress.ac.za/.
- Lisa Forsberg and Thomas Douglas, ‘What is Criminal Rehabilitation?’ (2020).
- Hammer-Bacher and Lyvers, ‘Factors Associated with Relapse Among Clients in Australian Substance Disorder Treatment Facilities’ (2019).
- Jean Hampton, ‘The Moral Education Theory of Punishment’ in Forgiveness and Mercy (Cambridge University Press 1988) 213.
- K. Ligi, ‘Introduction to Restorative Justice Practices in the Criminal Justice System: An Overview’ (2020) Criminal Law Journal https://www.criminallawjournal.org/article/77/4-1-22-902.pdf.
- William Lillie, An Introduction to Ethics (Methuen & Co, London 1948).
- L. MacKenzie, What Works in Corrections: Reducing the Criminal Activities of Offenders and Delinquents (Cambridge University Press, 2006).
- George Herbert Mead, ‘The Psychology of Punitive Justice’ (1917–1918) American Journal of Sociology.
- Dona Raisa Monica, Erna Dewi, Ahmad Izral Fardiansyah, and Rini Fathonah, ‘Social Reintegration of Inmates Through the Right of Parole’ (2024) International Journal of Religion.
- Anacani Elizabeth Rocha, The Successful Reintegration from Prison to Community Experienced by Men of Color (2021)
- Cecilia Rudolf Valentino, ‘Restorative Justice as an Alternative in the Indonesian Criminal Justice System’ (2022) Journal of Progressive Law and Legal Studies, Vol 3 Issue3.
- Daniel W. Van Ness, ‘RJ City: Contemplating a Restorative Justice System’ (Paper presented at Building a Global Alliance for Restorative Practices and Family Empowerment Conference).
- Zedner, ‘Dangers of Dystopians in Penal Theory’ (2002) Oxford Journal of Legal Studies
- Zedner, ‘Reparation and Retribution: Are They Reconcilable?’ (2002).
- United Nations, Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), Rules 5 and 92.
- African Union, Ouagadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reforms in Africa (2002), Recommendation 3.
- Britannica Dictionary, ‘Parole’ https://www.britannica.com/dictionary/parole.
- Ghana Prisons Service, Official Website https://ghanaprisons.gov.gh/.
- Ghana Prisons Service, Annual Report (2023).
- Government of Uttarakhand Prison Department (India), ‘Parole & Furlough’ https://prison.uk.gov.in/parole/#:~:text=Parole%20and%20furlough%20to%20inmates.
- Prison Fellowship International, ‘Parole and Credit Policies Reduce Recidivism’ (2020) https://www.prisonfellowship.org/2020/12/parole-and-credit-policies-reduce-recidivism/.
- Criminal Procedure Code, 1960 (Act 30).
- Prisons Service Decree, 1972 (NRCD 46).
- [2014] GHASC 159.
- [2014] GHASC 169.
- [2020] Crim LR 430.
- [2021] GHASC 88.
[1] Cecilia Rudolf Valentino, ‘Restorative Justice As An Alternative in the Indonesian Criminal Justice System’, Journal of Progressive Law and Legal Studies, Vol.3 Issue 03
[2] William Lillie, ‘An Introduction to Ethics’ (1948), London: Methuen & Co.
[3] George Herbert Mead, ‘The Psychology of Punitive Justice’ (1917-1918), The American Journal of Sociology
[4] L. Zedner, ‘Dangers of Dystopians in Penal Theory’ (2002), The Oxford Journal of Legal Studies
[5] Supra note 1 at pg. 349
[6] Daniel W. Van Ness, ‘RJ City: Contemplating a restorative justice system’ (Paper presented at Building a Global Alliance for Restorative Practices and Family Empowerment)
[7] TK Ligi, ‘Introduction to restorative justice practices in criminal justice system: An overview’ https://www.criminallawjournal.org/article/77/4-1-22-902.pdf
[8] Lisa Forsberg & Thomas Douglas, ‘What is Criminal Rehabilitation’ (2020)
[9] Hampton, ‘The Moral Education Theory of Punishment’, pg. 213
[10] Zedner, ‘Reparation and Retribution: Are They Reconciliable?’
[11] Amanda Dissel, ‘Rehabilitation and Reintegration in African Prisons’ <http://www.hsrcpress.ac.za/>
[12] Anacani Elizabeth Rocha, ‘The Successful Reintegration From Prison To Community Experienced By Men of Color’
[13] Dona Raisa Monica, Erna Dewi, Ahmad Izral Fardiansyah, Rini Fathonah, ‘Social Reintegration of Inmates Through Right of Parole’, International Journal of Religion (2024)
[14] ‘Parole & Furlough’ https://prison.uk.gov.in/parole/#:~:text=Parole%20and%20furlough%20to%20inmates,a%20sense%20of%20self%2Dconfidence.
[15] Rule 5, United Nations Standard MInimum Rules for the Treatment of Prisoners
[16] Rule 92, United Nations Standard Minimum Rules for the Treatment of Prisoners
[17] Recommendation 3 of the Ouagadougou Declaration (2002)
[18] Ghana Police Service official website: https://ghanaprisons.gov.gh/
[19] Ibid
[20] Ibid
[21] [2014] GHASC 159
[22] [2014] GHASC 169
[23] [2020] Crim LR 430
[24] [2021] GHASC 88
[25] NRCD 46
[26] Act 30
[27] Britannica Dictionary <https://www.britannica.com/dictionary/parole#:~:text=permission%20given%20to%20a%20prisoner%20to%20leave%20prison%20before%20the%20end%20of%20a%20sentence%20usually%20as%20a%20reward%20for%20behaving%20well>
[28] L.P. Carney, ‘Probation and Parole: Legal and social dimensions’, New York McGraw Hill Book Company
[29] M. Hammer-Bacher & Lyvers, ‘Factors associated with relapse among clients in Australian substance disorder treatment facilities’
[30] Ghana Prisons Service (2023)
[31] D.L. MacKenzie, ‘What works in corrections:reducing the criminal activities of offenders and delinquents’ Cambridge University Press.
[32] Prison Fellowship (2020) https://www.prisonfellowship.org/2020/12/parole-and-credit-policies-reduce-recidivism/
[33] Alex Antwi, ‘Social Reintegration of Offenders and Recidivism in Ghana’
